PROGRAMA DE REHABILITACIÓN CARDÍACA DOMICILIARIO:

Another area of potential civil liability arises from the administration of ESAR- VHP itself. As a state-based registry that provides actionable information on VHPs, it is conceivable that a person injured by a volunteer will seek damages from system

administrators for negligence in screening that volunteer. If the ESAR-VHP is

administered by state government, however, sovereign immunity may attach and preclude civil liability for the state or its employees, unless the applicable tort claims act (TCA) permits such a claim to proceed.

A more complex issue is the potential civil liability of a third party entity that administers ESAR-VHP on behalf of the state government. Under the doctrine of sovereign immunity, a state typically cannot be held liable for the negligent acts or omissions of its agents or employees unless the state consents to be sued, or statutorily waives immunity.202 Sovereign immunity may extend to all arms of the state

government, even public universities and hospitals.203 Additionally, governmental officials are generally entitled to sovereign immunity for any official act which is discretionary in nature.204 An official is entitled to the protections of this type of

immunity when he performs a discretionary function, in good faith, and within the scope of his employment or authority.205

However, state sovereign immunity protections do not automatically cover private contractors even when performing quasi-public functions.206 Thus, if a state assigns responsibility for administering ESAR-VHP to a private actor, this entity may not be

protected statutorily from liability. In some situations governmental immunity is extended to private contractors acting on behalf of the government.207 For example, the U.S. Supreme Court extended federal governmental immunity from products liability actions to a private supplier of military equipment where:208

• the government approved reasonably precise product specifications,

• the equipment produced by the contractor conformed to those specifications, and • the supplier warned the government about the dangers in the use of the

equipment that were known to the supplier.

The court reasoned that, when private contractors are hired by the government, they should sometimes share in the protections of sovereign immunity for the same reasons that the government enjoys those protections.209 States have also applied extended immunity to private contractors.210 A New Jersey court held that the governmental immunity enjoyed by the Department of Transportation extended to a private road contractor who was acting at the behest of the government.211 The court reasoned that “[t]he statutory immunity would be meaningless if a public entity’s contractor which follows government specifications were held to the liability from which the public entity is shielded. Under these circumstances the contractor enjoys the same protection.”212

Although these decisions may lead to arguments favoring immunity protections for private contractors administering ESAR-VHP, the general rule remains that immunity does not apply.213 For these reasons, if a private entity were to administer the ESAR- VHP, the entity may be immune from liability for incidental damages related to the system, but not for negligent or willful actions. Contractual obligations may be determinative, or provide indemnification where liability may arise.

3.4 Workers’ Compensation

3.4 Summary Points

¾ Absent a state law extending workers’ compensation to a category of volunteers that covers ESAR-VHP, workers’ compensation does not cover unpaid volunteers because they are not deemed “employees.”

¾ Even if a state’s law appears to cover ESAR-VHP, coverage may be denied if the statute is written too narrowly, the employer has not elected to cover volunteers, or the volunteer has failed to register properly with the appropriate governmental subdivision in which she may ultimately provide services.

¾ The existing “home” employer may not be liable for injuries its employee sustains volunteering services elsewhere if the employee’s action is outside the course of employment with the “home” employer.

¾ If statutes extend coverage to ESAR-VHP, the temporary “host” employer is commonly defined as the applicable state or municipality. In the absence of such a statutorily defined employer, the “host” hospital or institution may be responsible for workers’ compensation coverage. The ESAR- VHP will typically invoke the state law wherever the services that give rise to the injury occurred.

¾ Compensation is usually only available for occupational diseases if the risks of contracting the disease on the job are peculiarly increased compared with the risk of contracting the disease in

employment generally. In addition, the claimant will have to demonstrate that the disease was in fact contracted in the course of employment and not due to exposure outside the workplace. Workers’ compensation is a government administered system for providing limited benefits to victims for work-related injuries or death, regardless of fault.214 Each state (and the federal government) has enacted workers’ compensation laws, which require work-related injuries to be reported and compensated in accordance with specific guidelines.215 Every injury or death which occurs at work is subject to administration under workers’ compensation for covered employees, including “occupational diseases” such as infectious diseases for health care workers.216 Generally the employer is liable if the employee sustains an injury that arises out of or occurs in the course of employment. Injured employees typically file claims for limited reimbursement for direct costs of medical treatment, lost wages, and resulting disabilities. Most claims are paid for by the employer’s workers’ compensation insurance company. Large employers, however, may be self-insured and administer their own claims.217

While injured employees are not obligated to pursue claims for compensation, there are several reasons why the pursuit of such claims may be necessary. Workers’ compensation is often the exclusive remedy for injured employees.218 Direct lawsuits against employers outside the workers’ compensation system for work-related injuries are forbidden in most instances.219 In most states, employers cannot unilaterally settle

workers’ compensation claims with injured employees without the approval of state workers’ compensation administrators. In addition, financial considerations necessitate such claims when injuries are significant. Other forms of health insurance including private insurance policies, Medicaid and Medicare, and automobile personal injury protection, may deny claims for medical charges where a workers’ compensation carrier is principally liable for these costs. Lost wages for time off work due to injury are

compensable only where a claim is filed, and thus compensation for disabilities may only occur through filing a workers’ compensation claim.220

The application of workers’ compensation benefits to VHPs during emergencies raises several specific challenges. As a general matter, workers’ compensation laws only cover “employees” and thus exclude unpaid volunteers or gratuitous workers. States may legislatively extend explicit coverage to certain volunteer workers. However, absent such provisions, the default is to exclude these workers from coverage. A second major challenge involves a determination of who during an emergency is the “employer” of a volunteer worker. Without knowing the location, type, or magnitude of emergency, it is difficult to establish which entity will be considered the volunteer’s employer and which state’s laws (or federal law) will apply if the volunteer leaves his or her regular place of employment or crosses state lines to provide services.

The first part of this section examines how ESAR-VHP would be treated under various states’ workers’ compensation laws and describes the default position for those states that lack provisions to cover volunteer health workers. The second and third parts address the workers’ compensation liability of the volunteers’ existing “home” and temporary “host” employers, respectively. Legal analysis varies by state and will likely be complicated if the volunteer is temporarily employed by an employer outside the

jurisdiction in which he or she maintains usual employment. The fourth part addresses some challenges in obtaining compensation for occupational diseases.